Terrorists or nobodies?
Defence lawyers to argue pair were entrapped by undercover officers
John Nuttall and Amanda Korody were entrapped by police and their crimes were “manufactured” by the state. So their defence lawyers are claiming, now that a jury has found the pair guilty of terror- related charges in B. C. Supreme Court.
Wrong, says the Crown. They are dangerous terrorists and should be locked away for at least 20 years. They planted homemade bombs outside the province’s legislative buildings and conspired to commit murder, all stemming from a complicated Canada Day terror plot.
The scheme was conceived and partly executed in 2013, with a large assist from undercover officers. “Good old- fashioned police work,” Crown prosecutor Peter Eccles told reporters after the jury reached its verdicts Tuesday.
There’s a competing view, soon to be argued at length in B. C. Supreme Court. Despite four months of trial proceedings, reams of evidence and Tuesday’s guilty verdicts, this terror case isn’t over yet. Until the entrapment argument is settled, no convictions will be entered, no sentences handed out. Nuttall and Korody will remain in custody, where they’ve been since their arrest on July 1, 2013.
The RCMP were tipped to the pair earlier that year. There was no fixed terror plot then, no scheme to blow up things and cause death in the name of jihad. There was only Nuttall, a babbling conspiracy enthusiast, and Korody, his sickly common- law wife, living in Surrey, B. C. Both were recovering heroin addicts, and recent converts to Islam.
They had radical ideas. They spouted jihadist slogans and hung around mosques, where they weren’t made to feel welcome.
The pair was soon befriended by a Middle Eastern man with ties to committed jihadists, whom the couple also met. Their new friends helped them plan their Canada Day terror plot and supplied materials for improvised explosive devices, which the couple built and then planted on the legislature grounds in Victoria. That was all an investigative ruse. There were no explosions, no injuries. Up to 240 RCMP officers were involved in the undercover sting, court heard. The cost of the operation, while never disclosed, can reasonably be assumed to have been high. But the couple’s motives were proven real. Nuttall and Korody had a fair trial and were found guilty on two of three terror- related counts.
The jurors did their job; their verdicts are correct. Evidence produced in court — dozens of hours of police surveillance tapes and wiretaps — left no reasonable doubt the two accused believed themselves to be a terrorist group and intended to commit crimes associated with terror. Their own words and deeds caught on video and audio tapes, Nuttall and Korody hanged themselves.
But one can still consider the alternative, that police and the Crown went too far in their efforts to brand Nuttall and Korody as terrorists. It they were entrapped, as their lawyers claim, an abuse of process has occurred, and no conviction is worth that.
In Canada, an entrapment argument is typically made in front of a judge alone, by defence lawyers, after a jury has reached a guilty verdict. In this case, counsel for Nuttall and Korody asked trial judge Catherine Bruce to hear their argument; Bruce agreed not to enter the pair’s convictions until an entrapment hearing is completed. That could take several more months. Scheduling will be discussed in court next week. Should Bruce accept the defence argument, she would likely order a stay of proceedings, and the couple would be set free.
There are two “species” of entrapment, explained in a 1988 Supreme Court of Canada decision. “The first arises where state agents provide a person with an opportunity to commit an offence,” the court decided, “without acting on a reasonable suspicion that this person is already engaged in criminal activity” or “pursuant to a bona fide inquiry.”
The second instance occurs when, “having such a reasonable suspicion or acting in the course of a bona fide inquiry, ( police) go beyond providing an opportunity and induce the commission of an offence.”
Factors include “whether the police have instigated the offence or became involved in ongoing criminal activity; whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction; whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship.”
Defence lawyers Mark Jette and Marilyn Sanford have suggested these very factors were in play during the undercover police investigation. But entrapment arguments are rare; rarer still are those which succeed. “This is where the rubber hits the road,” Jette told reporters Tuesday.
Their new friends helped them plan their Canada Day terror plot and supplied materials for improvised explosive devices.